The big debate among academic legal scholars concerning Marxist legal systems is whether socialist law is anything different from the English common law or the Roman civil law template.
This debate used to be rather robust
during the days when there were so many members of the Marxist family
of legal systems. The Marxist socialists always insisted on the
superiority of their model to provide economic growth
and development.
What
used to be a big family that was fathered by Josef Stalin
in the embers of World War II is now mostly extinct with
the European branch having completely died off. There are only a few
orphaned socialist legal systems with sharply divergent personalities left
in the world, including misanthropic, isolated North Korea, free-booting
China and the combative old Spanish colony of Cuba under socialism's
feudal overlord, Fidel Castro.
This
is the legal system I recently went to study with my local U.S.
county bar association, as part of a delegation of lawyers qualifying
for an exemption from the U.S. travel restrictions in place as
part of the U.S. embargo. We met with professors, attorneys, judges and some
other government officials in Havana for a week. Each session
included a speaker holding and waving a copy of Cuba's
constitution, a talismanic touchstone for them in any discussion
or answer to questions on various topics of constitutional law,
economic reforms, commercial law, family law, penal law and election law.
Cuba's
constitution provides the framework for complete state primacy over
Cubans' personal life and work. It also provides for the unquestioned
supremacy of the country's Communist Party.
With
some tentative and increasing exceptions, the state owns
and runs the whole economy, dictating certain prices
and performing commercial transactions; but the state preserves
complete sovereign immunity from any debt or legal action, very close to pre-Magna
Carta England.
Despite
Article 57 protecting the confidentiality of mail and telephone
communications, the Cuban defense lawyer for imprisoned U.S.
businessman Alan Gross admitted to us that this textual constitutional
protection has not been applied to protect data contained on a
computer, or a flash drive confiscated without due process
and without a documented chain of custody, because this is
a "political case."
Fidel
Castro and his brother are the permanent overlords of Cuba, with
97 percent of everyone else "voting" in meaningless
elections just to make them feel involved.
One
of the basics of developed Western civilization is
a constitutional system allowing a structured opposition
to formally challenge any current ruling group, so that any errors made
by those in place may be defined and challenged by those
contending to rule in their stead. Various degrees of democracy
implement this tradition in countries with parliamentary systems like
Canada, Britain and the United States.
Cuba
lacks this open feature of society, despite protests by several
of our Cuban colleagues that their administered, one-party form
of elections are far more efficient than U.S. elections. They also feel
that the Cuban system is better than what they refer to as "confederacies"
caused by divergent plans for the future on display
in current U.S. politics. They use Abraham Lincoln as a point
of reference to say that just as Lincoln fought a confederacy
threatening to split the United States, the Castro regime must
do the same thing to prevent any organized political opposition.
Cuba
has no judicial review of government actions and no right
of habeas corpus. Visiting Cuba is like going back in time to a
lost legal world. This gives advisory urgency to the admonition heard
around the patio lounge of our beautiful 1930s vintage hotel
in Havana: What happens in Cuba stays in Cuba.
The government's
pervasive hold on Cuban society was manifest to us during our stay,
perhaps best exemplified by the housing stock and commercial buildings
confiscated by Castro a few years into his revolution. Almost
all of these structures are falling apart in a display
of ruination calling to mind a Hollywood apocalypse movie, just
like parts of Moscow in the 1980s: without windows; trees growing out
of roofs; metal bars splayed over doors.
Cuba's
fading socialism illustrates U.S. economist Milton Friedman's warning that
controlling an economy with your insider friends ends up stifling
the liberty of everyone else.
**Edward
Tiesenga practices law in Chicago.